Supreme Court and Obamacare: Judicial Activism or Judicial Review?

Rich Tucker /
July 12, 2012

The deeper meaning and implications of the Obamacare case for the Supreme Court’s reputation and constitutional law will be debated for years to come. In its annual Supreme Court review event at Heritage yesterday, an all-star cast of scholars, advocates (including Solicitor General Donald Verrilli), and journalists tackled those topics.

The Court did rule that the Obamacare insurance mandate violates Congress’s Commerce Clause power. But Chief Justice John Roberts reframed the statute to let it stand under Congress’s power to tax. Legal scholars disagree whether that reframing—or judicial rewriting, as the dissent claimed—was convincing or legitimate, but the implications of that distinction for future cases are even more in question. For many opponents of the law, including Michael Carvin, who argued the case in the Supreme Court for the National Federation of Independent Business, the distinction doesn’t make much of a difference.

“The operation was a success, but the patient died,” Carvin said during The Heritage Foundation’s annual Scholars and Scribes panel. Carvin added that the Court’s ruling could greatly enhance Congress’s power to regulate through phony taxes. Lawmakers will be able to pass any “penalty” they want, Carvin said, and count on Roberts to redefine it as a “tax” for constitutional reasons.

As panelist David Savage of the Los Angeles Times noted, reporters used to have hours to read a decision, think about it, and consult other experts before they were expected to file a story explaining what it said. Now they have minutes. That deadline pressure leads to mistakes, such as the ones made this year by CNN and Fox.

Savage also wondered whether conservatives ought to applaud Roberts’s decision, since it upheld an act of Congress and could thus be seen as an example of showing judicial restraint. But as Heritage’s Todd Gaziano explained, if the law in question is unconstitutional, a judge has no choice but to strike it down.

“The correct view of [the judicial role] is calling the balls and strikes as the law requires,” Gaziano said. “An incorrect view [is] to say ‘judicial activism’ [is] whenever a court strikes down a law, because [striking down a law] is their duty if they are following their oath to defend the Constitution in many cases.”

Judicial review, as opposed to judicial activism, is crucial. “Judicial review is the power of courts to evaluate laws and the actions of government to determine whether they are constitutional,” explains a Q & A on the Heritage First Principles page. “Judicial activism goes beyond judicial supremacy as it involves judges substituting their own preferences for laws enacted by lawmakers. This is also popularly called legislating from the bench.”

There’s no way to know what Roberts was thinking when he wrote his decision, of course. But Carvin says the Chief Justice “clearly rewrote the statute,” and that’s exactly the sort of activism Roberts promised to avoid in his confirmation hearings seven years ago.